Oscar Ramos-Rodriguez v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JUN 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OSCAR ANTONIO RAMOS- No. 08-72103
RODRIGUEZ; CLAUDIA SEGOVIA
RAMOS-RODRIGUEZ, Agency Nos. A098-287-263
A098-287-264
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Oscar Antonio Ramos-Rodriguez and Claudia Segovia Ramos-Rodriguez,
natives and citizens of Nicaragua, petition for review of the Board of Immigration
Appeals’ (“BIA”) order rejecting their claims for asylum, withholding of removal,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and for
substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056
(9th Cir. 2009). We deny in part and grant in part the petition for review, and we
remand.
Substantial evidence supports the agency’s denial of CAT relief because
petitioners failed to establish it is more likely than not they would be tortured if
removed to Nicaragua. See Wakkary, 558 F.3d at 1067-68. Accordingly, their
CAT claims fail.
Petitioners base their claims for asylum and withholding of removal on
mistreatment by Sandinista members and loyalists. The BIA denied their claims,
finding the mistreatment did not rise to the level of persecution and they did not
establish the government was unable or unwilling to protect them. However, the
BIA did not take into account the petitioners’ ages at the time of the mistreatment.
See Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045-46 (9th Cir. 2007) (error
not to “look at the events from [petitioners’] perspective, nor measure the degree of
their injuries by their impact on children of their ages”). In addition, contrary to
the BIA’s finding petitioners presented “no evidence” the government was unable
to unwilling to protect them, petitioners presented testimony that Esteli was a
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Sandinista city, that the police were Sandinistas, and that it was therefore futile to
report the attacks. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.
2006) (reporting not required where petitioner establishes it “would have been
futile or have subjected him to further abuse”). In light of this conclusion, and the
possibility that a presumption of future persecution applies, see 8 U.S.C.
§§ 1208.13(b)(1), 1208.16(b)(1)(i), we do not reach the BIA’s other findings
regarding petitioners’ fear of future persecution. Accordingly, we grant the
petition for review with respect to petitioners’ asylum and withholding of removal
claims and remand for further proceedings consistent with this disposition. See
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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